O'Connor v. Larocque

• Citation: 302 Conn. 562,31 A.3d 1
• Decision Date: 01 November 2011
• Docket Number: No. 18648.,18648.
• Court: Supreme Court of Connecticut
• Parties: Theresa P. O'CONNOR et al. v. Dorothy LAROCQUE.

302 Conn. 562
31 A.3d 1

Theresa P. O'CONNOR et al.
v.
Dorothy LAROCQUE.

No. 18648.

Supreme Court of Connecticut.

Argued Jan. 11, 2011.Decided Nov. 1, 2011.

[31 A.3d 3]

John H. Parks, Somers, for the appellant (defendant).

Bruce D. Tyler, Somers, for the appellee (named plaintiff).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

ZARELLA, J.

[302 Conn. 564] The defendant, Dorothy Larocque, appeals ¹ from the judgment of the trial court quieting title to certain real property in favor of the named plaintiff,² Theresa P. O'Connor, predicated on a finding that the plaintiff had disseized the defendant of her interest in the property as a tenant in common. The defendant claims that the trial court improperly determined that the plaintiff had overcome the presumption that possession by a tenant in common is not adverse to another cotenant ³ and had

[31 A.3d 4]

proven, by clear and convincing evidence,[302 Conn. 565] the elements of an adverse possession.⁴ The plaintiff responds that the trial court properly concluded that she had overcome the presumption against adverse possession by a tenant in common and had proven its underlying elements. We agree with the defendant and, accordingly, reverse the judgment of the trial court.

The record reveals the following uncontested facts and procedural history. The plaintiff and the defendant are sisters, and they have two other siblings. Their father died intestate in 1971, and, by statute,⁵ a vacant lot (lot) that he had solely owned passed as part of his estate, with a one-third interest passing to his widow, the parties' mother, and a one-sixth interest passing to each of his four children. A probate certificate of devise or descent reflecting this division of interest was recorded in the land records of the town of Somers (town) on April 14, 1972. On February 27, 1980, the parties' mother, incorrectly believing that she held full title to the lot, conveyed it to the plaintiff and the plaintiff's husband by quitclaim deed. The deed conveyed “all such right and title” as the mother “ha[d] or ought to have” in the lot, and not full title to the entire lot. As a consequence of this misunderstanding and of the plaintiff's apparent failure to consult the town's land records, the plaintiff incorrectly believed, like her mother, that she had acquired full title to the lot.

[302 Conn. 566] In 1987, the plaintiff and her mother became aware that there was a “cloud” on the title, that her mother had inherited only a one-third interest in the lot and that the defendant and her siblings each had inherited only a one-sixth interest in the lot. The plaintiff, through her attorney, thus asked the defendant to sign a quitclaim deed relinquishing her one-sixth interest to the plaintiff, which the defendant refused to do. In February and April, 2007, the surviving spouse of one of the siblings and the other sibling, who are not parties to this appeal, conveyed their respective one-sixth interests to the plaintiff by quitclaim deed. As a result, prior to the commencement of this litigation, the plaintiff held a five-sixths interest in the lot, and the defendant held a one-sixth interest.

On October 1, 2007, the plaintiff brought the quiet title action underlying this appeal against the defendant, claiming full ownership of the lot. The first count of the complaint alleged ownership through adverse possession. The plaintiff alleged that she had claimed the subject property as her own, continuously and for more than fifteen years, in an open, visible, hostile, notorious, adverse and exclusive manner, from the time she had acquired her mother's interest on February 27, 1980, to the time she had filed the complaint. In support of her claim, she alleged that she had planted evergreen trees along the perimeter of the lot, paid all of the property taxes, maintained liability insurance, mowed the grass, used the lot for disposing

[31 A.3d 5]

of tree branches and brush from other property and otherwise maintained the property to the exclusion of others. In addition, the plaintiff alleged that her name was listed in the town's assessment records as the owner of the lot but that she held only a five-sixths interest in the lot.

The plaintiff alleged, in the second count of the complaint, ownership by way of an equitable claim. The basis for this claim was that, because the defendant [302 Conn. 567] had prevailed in an earlier adverse possession action against the plaintiff involving nearly identical allegations with respect to an adjoining property, the plaintiff was entitled to prevail on her reciprocal claim in the present action as a matter of fairness. The defendant asserted six special defenses, including that the plaintiff's claim of adverse possession was defeated by the legal presumption against adverse possession that applies when the parties are tenants in common, and a counterclaim seeking partition or sale of the lot.

Thereafter, the defendant filed a motion for summary judgment. The trial court granted summary judgment in the defendant's favor as to the second count of the complaint on the ground that it was “devoid of any allegations resembling any equitable theory of liability.” The court added that “no rule in law or equity exists that the victor in an earlier case becomes the vanquished in a later one merely because their roles have reversed.” ⁶

[31 A.3d 6]

[302 Conn. 569] The case proceeded to a bench trial on the first count of the complaint and on the defendant's counterclaim. The plaintiff testified at length regarding actions she had taken that allegedly demonstrated her exclusive possession of the lot. She testified that the lot was adjacent to a large piece of land on which her own home was situated, that one third of the lot consisted of woods and that, shortly after she had acquired her mother's interest in 1980, she had planted evergreen trees around the remaining two thirds of the lot, which consisted of a grassy field. In addition, her husband had mowed the grass periodically, and, for many years, she had granted annual requests by the Four Town Fair Association to use the lot for parking during the town fair. Since 1980, the plaintiff also had maintained a liability insurance policy, cleaned up brush and leaves and paid all of the real estate taxes due on the lot.⁷ The plaintiff finally testified that she had not communicated with the defendant for twenty-five years, except for her request through an attorney to sign the quitclaim deed in 1987, and that she had not changed the way in which she had used the lot after learning that she lacked sole ownership.

On cross-examination, the plaintiff conceded that an aerial photograph showing that the wooded portion of the lot was adjacent to the road, that the evergreen trees she had planted were behind the woods on the two sides of the lot bordering her other property, and that the fourth side of the lot was separated from a neighboring property by what appeared to be

[31 A.3d 7]

existing trees, “fairly and accurately represented the lot....” [302 Conn. 570] The plaintiff further testified that she had planted the evergreen trees “pretty far apart” and that motor vehicles could enter the lot through spaces in between the trees. In addition, the lot was accessible through a larger space between the trees maintained by the plaintiff, as well as through the woods adjacent to the road. The plaintiff admitted that she had never built a fence around the lot or posted “No Trespassing” signs to deter people from entering. Upon being asked, “how did you tell [the defendant] that you were adversely possessing against her,” the plaintiff responded: “Through [the] court and lawyers. When ... the question of the other two lots [involving clouded titles] came up, it was brought up.”

Upon completion of the plaintiff's testimony, her husband testified that his Jeep Wrangler and trailer, which together measured approximately seven feet wide by ten feet long, could “easily” be driven onto the lot, as could his full size automobile. The defendant was the last to testify and stated that the plaintiff had never told her that she was claiming exclusive possession of the lot.

During closing arguments, the plaintiff's attorney argued that the defendant had received notice of the plaintiff's claim to the property when the defendant commenced similar litigation against the plaintiff seeking to resolve title to two other lots in which both parties had an interest. He specifically argued: “The [plaintiff] testified that there was a case, and this had come to the attention [of] the parties at the time of [the defendant's] claim to the property involving the various lots, including this lot. And I'm referring to that case for the purpose of pointing out that the defendant certainly had notice. There was correspondence from [302 Conn. 571] attorneys with regard to signing a quitclaim deed.⁸ ... [T]o say that the defendant didn't know that the plaintiff was claiming this is somewhat disingenuous, to say the least.”

At the conclusion of the trial, the court rejected the defendant's special defenses and found that the plaintiff had overcome the presumption that possession by a tenant in common is not adverse to another cotenant and had proven by clear and convincing evidence all of the requisite elements of adverse possession. The court also found in favor of the plaintiff on the defendant's counterclaim for partition or sale of the lot before rendering judgment quieting title in favor of the plaintiff.

Following the trial court's issuance of its memorandum of decision, the defendant filed a motion seeking an articulation of, inter alia, the basis for the trial court's findings and conclusion that the record contained clear and convincing evidence sufficient to overcome the presumption against adverse possession by a tenant in common. In replying to multiple questions relating to this issue, the court repeatedly...